Current developments in the Family and Medical Leave Act by Carl C. Bosland, Esq.

Serious Health Condition

June 30, 2011

John Prigge told Sears, his employer, that he was absent for two days to receive radiation treatment for prostate cancer. In reality, Prigge suffered from bipolar disorder, which had been diagnosed several years earlier. Prigge was subsequenlty absent for seven days during which he was admitted to a medical clinic suffering from depression. On this occasion, Prigge advised Sears that his absence was due to incapacity and treatment for bipolar disorder. He also confessed that his prior absence was not due to prostate cancer, but to bipolar disorder.

Sears demanded that Prigge provide medical documentation substantiating his need for leave due to prostate cancer and bipolar disorder. Prigge provided medical documentation substantiating his need for leave due to bipolar disorder. He provided medical certification verifying that he did not suffer from prostate cancer. Sears fired for failure to substantiate his need for leave with medical documentation due to prostate cancer, and for lying about his need for prostate cancer.

The Third Circuit agreed with Sears. It found, essentially, that Sears had the right to terminate Prigge for lying about his need for leave, and because he failed to substantiate that need with supporting medical documentation.

Comment: However awkward or embarrassing, employees need to tell their employers the real reason for their need for FMLA leave. Courts have not allowed employees to tell their employer a false reason for the need for leave. In addition to being truthful, had Prigge told Sears the real reason for the prior leave it would have likely been covered by the FMLA. Courts have not excused employees from telling their employer the real reason for their need leave out of embarrassment or fear that the reason will be fodder for office gossip. Nor have they looked past the false reason to find FMLA coverage based on the real reason for the leave. Courts have consistently found that employers are entitled to the real reason animating the need for leave.

March 22, 2010

Rachel Schaar worked as a medical receptionist for Lehigh Valley Health Services for three years until her termination. Two weeks prior to her termination she was treated for a urinary tract infection. Her physician prescribed medication. He wrote a note indicating that Schaar would be unable to work due to her illness for the next two days. Schaar took paid sick leave for those two days (Wednesday-Thursday). She remained absent on Friday and Monday. She claimed to be sick on those days. Schaar had previously secured approved vacation leave for Friday and Monday. Schaar did not request FMLA leave for those days. Nor did she ask to convert those days from paid vacation to paid sick leave. Schaar was subsequently terminated for failure to call off sick on Friday and Monday as required by company policy. She sued alleging interference and discrimination in violation of the FMLA. The district court awarded summary judgment to Lehigh Valley, holding that Schaar failed to establish that she had a serious health condition because medical testimony was needed establish that her incapacity over the weekend was due to the illness.

On appeal, the Third Circuit reversed the award of summary judgment to Lehigh Valley. In so doing the Court noted a three-way split by courts regarding the type of evidence needed to establish that she was incapacitated by a serous health condition: (1) the evidence of incapacitation must come exclusively from a medical professional; (2) lay testimony, on its own, is sufficient; or (3) lay testimony can supplement medical professional testimony or other medical evidence. The court noted that "continuing treatment by a health care provider," 29 CFR 825.114, does not, by its plain terms, "require, or even mention, a health care provider determination." As such, the court rejected the approach requiring that evidence of incapacitation come exclusively from medical professionals, and not lay testimony. However, the court also rejected the approach that lay testimony alone may create a genuine issue of fact regarding the existence of a serious health condition. "Some medical evidence is still necessary to who that incapacitation was "due to" the serious health condition. The court remanded the matter for further development of the record consistent with its determination.

Comment: The decision will require employers to exercise greater caution when considering whether an employee who is absent in excess of the amount covered by a medical certification nevertheless has an FMLA-covered serious health condition and, therefor, is protected from discipline, for the full absence. Unfortunately, the decision does not provide guidance on how much lay evidence in addition to medical evidence is necessary for an employer to determine whether the full absence is covered by the FMLA. This will require employers to conduct a thorough investigation of each incident before denying the leave or taking disciplinary action to rule out FMLA coverage. Employers should seriously consider requiring employees to confirm the existence of a serious health condition by requiring a medical certification for the entire period and, if necessary, challenging the certification with a second medical exam.

The Third Circuit covers New Jersey, Delaware, Pennsylvania, and the Virgin Islands. The decision is also a handy resource for the how other federal Circuit Courts have handled the situation.

December 18, 2009

In Schuler v. Branch Banking & Trust Co., No. 1:08cv378, 2009 U.S. Dist. LEXIS 94043 (W.D. N.C. Oct. 8, 2009), the court allowed Schuler to rely on evidence of her post-termination diagnosis and treatment for pancreatic cancer to establish a forecast of evidence that she was suffering from an FMLA-covered serious health condition, albeit undiagnosed, at the time of her termination, sufficient to defeat the employer's motion for summary judgment on the issue.

Comment: The post-termination evidence of diagnosis and treatment gave context to the pre-termination symptoms of the disease that Schuler was suffering. Wide adoption of this standard will make it very difficult for employer's to secure summary judgment in cases where undiagnosed symptoms alone may not meet the requirement of one-or-more FMLA-covered serious health conditions. That may mean more expensive settlements and litigation.

November 25, 2009

On November 9, 2009 the DOL Wage and Hour Division issued guidance on the availability of FMLA leave where the employee or covered family member is ill with pandemic flu. In relevant part, the DOL notes that FMLA leave is NOT available to avoid exposure to the flu. The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza.

Similarly, the DOL notes that the FMLA does not cover an employee's absence to care for healthy children who have been dismissed from school or child care to prevent the spread of the influenza. Eligible employee's may take FMLA leave to care for a child who is sick with pandemic flu, but only if the illness rises to the level of a serious health condition as defined by the FMLA.

The DOL notes that employers may have a plan or policy that allows the employer to send employees home if they show symptoms of pandemic influenza, provided the plan and the employer's decisions comply with all applicable laws, including federal anti-discrimination laws.

Consistent with the FMLA and ADA, the DOL advises that employers may require an employee who is out sick with pandemic influenza to provide a doctors's note, submit to a medical exam, or remain symptom-free for a specified period of time before returning to work. Under the FMLA, to do so the employer must have a uniformly-applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee's health care provider that the employee is able to resume work, and the employee must have been notified of the requirement in advance. The terms of a collective bargaining agreement may also impact an employee's right to return from FMLA leave.

Finally, the DOL cautioned employers that laying off employees who are unable to come to work because they are taking care of sick family members must not discriminate against employee's for exercising FMLA rights. The DOL suggests that, in lieu of laying off employees, employers consider other options such as telecommuting. The DOL also suggests that employers prepare a plan of action.

June 12, 2009

Jeremy Crown was diagnosed with Type I Diabetes in August 2006. Nissan, his employer, granted his request for 10 days of FMLA leave to cover the absence that led to the diagnosis. In October 2007, Crown was absent from work for three consecutive days. Crown claimed that the absences were related to his Diabetes. Pursuant to Nissan policy, he submitted a medical certification substantiating his request for FMLA leave to cover the absence. The health care provider who filled out the certification checked the box for an absence of more than three consecutive days. The health care provider did not check the box for a chronic condition. Nissan denied the request for FMLA leave because Crown was not incapacitated for more than three consecutive calendar days. Nissan also assessed Crown with 4 points for unexcused and excused absences. The four points put him over the company's attendance policy limit. Crown was terminated.

Crown sued alleging that his termination violated the FMLA. Crown argued that, notwithstanding the failure of the medical certification to substantiate his request for FMLA leave, Nissan should have granted him FMLA leave anyway. Crown reasoned that Nissan knew he had an FMLA-covered condition (Diabetes) since August 2006. It knew that the condition would continue for an indefinite period. As such, Nissan, Crown argued, should have known that this three-day absence in October 2007 resulted from a period of incapacity due to his chronic serious health condition because it was aware that he had this condition and was likewise aware that the condition had previously necessitated leave. Crown contended that he should not be penalized because of the lack of competence or familiarity of the health care provider who filled out the certification. The court disagreed.

The court rejected as without merit the argument that Nissan should have known that that his absences were related to his chronic condition despite the health care providers failure to so indicate simply because it knew he had been earlier diagnosed with a chronic condition. The court observed:

By this argument, plaintiff is, in effect, contending that once an employer is on notice that an employee has a chronic health condition, the employer must thereafter assume that all medical absences from work are related to that condition. This position is directly contradicted by those provisions of the FMLA which permit the employer to require notice that leave is requested for a a qualifying reason and which authorize the employer to require the plaintiff to furnish certification for his health care provider that each period of absence is covered by the FMLA.

The court went on to observe that "[t]he FMLA does not require an employer to be 'clairvoyant.'" If an employee fails to provide its employer with the required notice, the employer can deny leave even if the employee has a serious health condition.

Comment: To ensure FMLA coverage where an employee or covered family member has a previously established qualifying reason for FMLA leave, it is incumbent on the employee to link the present need for leave with the known qualifying reason. Courts will not assume such a connection, particular where, as in Crown, the connection is not substantiated in a supporting medical certification.
The DOL codified the linkage requirement in 29 CFR 825.303(b) of the modified regulations.

The case also teaches employees that they should review the medical certification before handing it in to ensure that it supports the request for leave. If it does not, or if the employee has any questions regarding the information on the form, the employee should take the matter up with the health care provider before submitting the documentation. The health care provider should make any corrections on the certification form. The employee should NOT modify the certification form.

May 01, 2009

Robin Morris was terminated from his position as store manager for Family Dollar following his return from a week of approved leave to visit his mother. During his visit, his mother underwent an outpatient needle biopsy of a lump in her left breast. Immediately following the biopsy, the mother was hospitalized. On her release from the hospital the mother was bedridden for at least four consecutive days. During this time the mother complained of headaches, stomach problems, dizziness form the anesthesia administered during her biopsy, and pain and discomfort in her breast. The mother testified that Morris "had to take care of her every day needs" during this period. Morris testified that, post-biopsy, his mother needed help getting in and out of the shower and with household chores, that she had trouble walking. When asked during deposition whether he considered his mother to be incapacitated, he said "no." Follow-up visit with her doctor 10 days after the biopsy the mother confirmed that the lump was benign.

November 06, 2008

The fact that an employee receives FMLA leave does not, according to the Third, Circuit, equate to a finding that the employee is disabled from working for purposes of the Rehabilitation Act. Similarly, the fact that FMLA leave was approved does not demonstrate that an employee has a record of a disability. A "serious health condition" within the meaning of the FMLA is "a different concept" than the term "disability" and thus both must be analyzed separately. 29 CFR 825.702(b).

Analyzing the circumstances, the Third Circuit in Nicholson v. West Penn Allegheny Health System, No. 07-4354, 2008 U.S. App. LEXIS 22049 (3d Cir. Oct. 21, 2008)(non-precedential) found that Ms. Nicholson's FMLA-covered illness (PTSD, depression as a result of being a victim of a violent crime) was not a disability because it did not preclude her from working in a wide range of jobs. Additionally, because her illness was not a disability Nicholson could not prove that she was discriminated against for having a record of a disability.

Comment: Courts will not assume that an FMLA-covered "serious health condition" also constitutes a "disability" within the meaning of the Rehabilitation Act and/or the Americans with Disabilities Act (ADA). To be disabled from working, an individual must be precluded from working a wide range of jobs. An FMLA-covered "serious health condition," in contrast, merely requires that the eligible employee be unable to perform one or more essential functions of their job. As such, a "serious health condition may involve an illness or health condition that falls far below the level of a "disability." Of course, it is possible that a health condition is both an FMLA-covered "serious health condition" and an ADA-covered "disability." In that case, if proved, the employee would be entitled to the benefits of both the FMLA and the ADA/Rehabilitation Act.

A chronic serious health condition has three elements: (1) it requires periodic visits for treatment by a health care provider; (2) the condition must continue over an extended period of time (including recurring episodes of a single underlying condition); and (3) the condition may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

The Eleventh Circuit affirmed the trial court's dismissal of the FMLA claim, finding that the facts did not establish an FMLA-covered chronic serious health condition. Specifically, the court found that the condition did not continue over an extended period of time and did not require periodic visits to a health care provider for treatment. The employee's mother underwent stress and other testing after experiencing shortness of breath in September 2005. The only other appointment was for a heart catherization in October 25, 2005, from which she completely recovered within 48 hours. There was no evidence of medical follow up regarding the heart catherization.

Comment: It is unclear from the terse opinion whether the court considered the stress testing and heart catherization procedures to be related for purpose of a chronic serious health condition. Assuming that they were related, the month-long duration of the entire episode failed to satisfy the requirement that the condition "continues over an extended period of time."

The FMLA does not currently define what it means by an "extended period of time. The DOL should seriously consider modifying the regulations to identify a minimum period of time before a condition is considered to have lasted "an extended period of time" for purposes of a chronic serious health condition. Absent a defined minimum, covered employers and employees will have to go through the time and expense of litigating the issue in every instance.

The court's determination that the mother did not satisfy the "periodic treatment" requirement is more problematic, assuming that the stress and catherization procedures are related. If that is the case, the mother visited a health care provider twice for the same condition within a month. Based on case law developments, the DOL has proposed to moidfy the existing definition of a chronic serious health condition to define "periodic" as two or more health care provider visits a year. Under that definition, and assuming that the two treatments are related, the mother would have satisfied the periodic treatment requirement of a chronic serious health condition.

January 18, 2008

The issue in Darst v. Interstate Brands Corp., No. 04-2460, 2008 U.S. App. LEXIS 489 (7th Cir. Jan. 11, 2008) was whether a three-day period cited in support of the employee's termination should have been protected by the FMLA. The employee suffered from alcoholism and went on a three-day bender when he was not scheduled to work. After the bender, the employee called his physician and a local hospital seeking alcoholism treatment. Four days later the employee was admitted into the local hospital for treatment. In the interim, he missed three days of work.

The employee requested FMLA leave for the period beginning when he first called his physician seeking treatment through his admission into a treatment program up to his release to return to work. The employee supported his request with a medical certification from his physician.

Interstate subsequently learned that the employee was not admitted to the hospital for the entire period of time he wanted FMLA leave. After consulting with the Department of Labor, Interstate denied FMLA leave for three days the employee was scheduled to work prior to his hospital admission. The three uncovered absences put the employee over the limit of Interstates attendance policy, resulting in his termination. The employee sued alleging interference with his FMLA rights.

To establish that he received treatment on the three days at issue prior to his hospital admission the employee's physician testified that:

[T]reatment for alcoholism begins when the patient takes the first step towards seeking professional help. Accord to Dr. Pfeifer, this includes the first phone call to the health care provider seeking evaluation, treatment or referral. Based on his training and experience as a medical doctor, Dr. Pfeifer averred that Chalimoniuk's treatment therefore began on July 29, when he first contact4ed his physician's office."

The Seventh Circuit disagreed. The court opined that "treatment under the FMLA" is a defined term that does not include actions such as calling to make an appointment. Under the FMLA, "treatment" includes examinations to determine if a serious health condition exists and evaluation of the condition. It does not include "any activities that can be initiated without a visit to a health care provider."

Comment: To be covered by the FMLA medical treatment must satisfy the FMLA's definition of "treatment." The fact that the medical profession may have a broader definition of what constitutes "treatment" is not controlling.

In a footnote, the decision makes a helpful suggestion that the DOL update its FMLA medical certification form to make it clear to health care providers that substance abuse is limited to the period of treatment, which may be different than the period of incapacity.

January 11, 2008

An employee who was terminated during their probationary period because they failed to report to work on time due to car failure did not violate the FMLA. "Car failure is not a serious health condition under the FMLA." Phillips v. Matthews, et. al., No. 4:06CV00925-WRS, 2007 U.S. Dist. LEXIS 91122 (E.D. Ark. Dec. 10, 2007).